Q & A: Virtual hearings and MS Teams in the Provincial Court of BC

Posted to: 
Court
23/06/2020

The Provincial Court of British Columbia is now using Microsoft Teams (“Teams”) as its platform for some conferences and hearings being held remotely. We are working to expand our use of the Teams video conferencing platform to a wide variety of court proceedings, when this technology is suitable for the litigants and the issues involved.

To introduce the Court’s use of Teams to people who will be participating in proceedings held this way, the Court worked with the Canadian Bar Association BC Branch and the BC Trial Lawyers’ Association to present a webinar on May 28, 2020. Everyone interested can watch it at MS Teams and virtual hearings in the Provincial Court Of BC.

In the webinar Provincial Court Chief Judge Melissa Gillespie, Associate Chief Judge Susan Wishart, Legal Officer Karen Leung, Executive Director of Operations Ryan Mahar, and Judicial Case Manager Longine Chung answered questions about Teams proceedings and other aspects of the Court’s response to COVID19, but there wasn’t time to answer all the questions posed.

In this eNews they answer the questions posed during the webinar. (For brevity, we’ve combined questions on similar topics.) Answers are current as of June 23, 2020 but changes are occurring rapidly. Please check www.provincialcourt.bc.ca/COVID for the most up-to-date information.

Questions about Teams

1. What types of proceedings will the Court conduct using Teams?

The Court is working on expanding the use of Teams from criminal pre-trial and family and small claims case and settlement conferences to bail and sentencing hearings, and other trials or hearings (or portions of them), when appropriate for the parties and the issues.
When conducting conferences in family, criminal and small claims matters, judges are canvassing whether trials can be held remotely using Teams, or using a combination of remote, written, and in-person proceedings.
Find details on matters being dealt with remotely in:


2. How does Teams work?

You can use a desktop computer, laptop, tablet like iPad, or smart phone with a camera to participate in a Teams video proceeding, or you can dial in from a telephone.
You participate in a Teams proceeding either by using a web app, or by creating a free Teams account. Both methods are free. See Guide for appearing in the Provincial Court using Microsoft Teams for directions on connecting to a Provincial Court proceeding.
Microsoft says the maximum number of participants in a Teams proceeding is 250.
Teams is not location based, and participants need not be in the same city to connect into a Teams conference, so lawyers and clients need not be in the same location. When they need to consult, they can request a break, mute their microphones, turn off their cameras, and speak privately by telephone.
Teams is compatible with court audio recording systems and Cisco, computer recording systems used in our courtrooms. Court clerks can audio-record and maintain court file records in the same way as they do for proceedings in a courtroom.

3. How will documents be handled?

Our Notice to the Profession and Public Covid-19: Resumption of Further Court Operations NP19 sets out documents that can now be filed, with directions for filing by mail, fax or email depending on the type of case.
The Court is working on a long-term solution for electronic submissions of documents. We are working with the Court Services Branch to make email and fax filing widely available on an ongoing basis. Unlike e-filing, email and fax filing require Court Services staff to process documents, and provisions must be made to accommodate this workload.
Documents for settlement conferences are currently being emailed to the Court.

4. What training on using Teams is available for lawyers and litigants?

Get step-by-step directions in our Guide for appearing in the Provincial Court using Microsoft Teams (It’s Appendix A to our Guide to Remote Proceedings (telephone and video) NP21 May 6)
There are a variety of training videos online.
If lawyers believe their clients are unable to use Teams, they can arrange other types of proceedings (e.g.by telephone and in some cases during the pandemic in-person.)

5. What are the guidelines for etiquette and conduct during a video Teams conference or hearing?

Counsel should dress as they would for a court appearance.
See our Guide for appearing in the Provincial Court using Microsoft Teams.
While participants are asked to avoid using a keyboard for note-taking because the noise can make it hard to hear, people who need to use one due to a disability can be accommodated. As with any other accommodation, it is helpful to alert the judicial case manager in advance, and then let the judge know that they need to use a keyboard at the beginning of the proceeding.

6. How can lawyers have private discussions with their clients in a Teams proceeding?

The Court is working on a way to provide lawyers with a means to have secure private discussions with clients during a Teams proceeding.
Until that’s available, counsel may ask the judge for time to speak to their client and use a telephone.
Make sure you and your client have muted yourselves and turned off your cameras before having a private discussion – otherwise other participants in the proceeding are able to hear and see you.

7. Is my private information secure if I use Teams?

We believe it is.
Teams does not provide the Court or anyone else with access to your personal information, calendar, or documents etc. on your computer. See
Security and Privacy in Microsoft Teams
.
Unlike most other platform providers who store information in the U.S. or other countries, Microsoft Teams has cloud-based storage in Canada.
If you open a free account, Microsoft will have access to the account details you provide on registering. If you have not registered and are using the web app, Microsoft will have your sign-in name. Teams captures technical details regarding your connectivity – jitter rate, ping – and network quality.

8. How will matters using Teams be scheduled? Can we be given a specific time for appearance or will we be required to be available all day?

This will vary with the type of proceeding. Whenever possible, the Court will try to minimize inconvenience, but it is sometimes necessary to schedule many cases for the same time in order to ensure they can all be heard in the time available.

9. How are guilty pleas and sentencing being handled?

The Court will hear dispositions on non-urgent criminal files where:

an out-of-custody accused and counsel agree to appear by telephone;
the prosecutor and defence counsel have agreed to similar submissions as to a fit sentence; and
the proposed sentence does not involve any incarceration although it may factor in time already spent in custody and include a one day jail sentence where the accused is not taken into custody.

To schedule these dispositions, defence counsel must complete the “Request for Resolution of Non-Urgent Matters” Form. Find further details in Notice to the Profession and Public Covid-19: Resumption of Further Court Operations NP19 (June 12)

10. What if participants record proceedings?

As with proceedings in a courtroom, participants are not permitted to audio- or video-record any portion of a Teams proceeding. The BC Courts’ Policy on the Use of Electronic Devices sets this out with the penalties that may be imposed for policy violations.

11. How can the Court ensure participants are not being coached or threatened by others in the room with them? And that they’re not referring to notes or documents in ways that would not be allowed in a courtroom?

The Court is currently using Teams for pre-trial conferences with counsel who are officers of the court with the associated obligations of integrity and fairness. Bail hearings are being done by Teams, and settlement and family case conferences by audio or videoconference. If a party has a concern that something inappropriate is occurring they should raise it with the presiding judge.
If witnesses are testifying using Teams in a hearing or trial, the situation will be similar to that when witnesses have testified by video conference in the past. Any signs of inappropriate conduct can be raised with the judge.

12. How will access to the Court be guaranteed for people without the necessary telephone/computer and/or internet? Will they be prejudiced?

The Provincial Court of BC is committed to meeting the needs of its litigants, whether they be low-tech, medium-tech, high-tech or no-tech.
The Court is very aware that remote proceedings won’t work for everyone or for every case. The Court will continue to conduct in-person proceedings whenever a remote conference or hearing is not suitable for the matter or the people involved.
The Court does not provide litigants with access to computers to participate in remote proceedings. Instead, those who cannot participate remotely will continue to appear in person.

13. How can people connect with Duty Counsel? How will Duty Counsel function in Teams proceedings? When will family remand days begin?

People can speak to family and criminal Duty Counsel and apply for Legal Aid by phone. See https://lss.bc.ca/legal_aid.
As noted in our Notice to the Profession and Public Covid-19: Resumption of Further Court Operations NP19 (June 12) people can contact Legal Aid to make an application or seek help with an urgent problem relating to a family court matter by calling their local Legal Aid office or calling 1-866-577-2525 (BC wide) or 604-408-2172 (Greater Vancouver).
Family remand dates have historically involved a lot of people in the courtroom. We are working to determine how we can recommence those operations in a manner that ensures safe physical distancing.

14. How will public and media access to Teams and other proceedings be guaranteed?

The open courts principle requires public and media access. Providing it is a priority for the Court.
Provisions have been made for media access to remote proceedings (other than remote conferences where attendance is limited to the participants, as it is when they are held in person) in NM 01 Accredited Media Access to Provincial Court Proceedings during COVID-19.
In order to maintain a safe physical distance in the public gallery of courtrooms, the number of seats available will be reduced. If counsel or a party is aware of anyone who intends to observe all or part of the proceeding, they should advise those individuals that while the court remains open to the public, seating is limited, and entry into the courtroom will not be permitted if the safe physical distancing requirements cannot be maintained. See NP22.

15. How can you obtain a transcript of a Teams proceeding?

If a hearing is recorded, transcripts are available on the same basis as for in-person proceedings. See Order a Transcript.
Criminal pre-trial conferences are not recorded.

16. Will resources be provided for RCMP detachments in the north to have the necessary hardware so that accused in custody may appear by video?

RCMP detachments in Dawson Creek, Fort Nelson, Fort St. John and Williams Lake have videoconferencing equipment for accused persons to appear remotely. The Court Services Branch of the Attorney General’s Ministry is working to expand and extend the current videoconferencing network in courthouses, as well as in correctional centres and police detachments. In this respect a videoconferencing unit is in the process of being set up in the Prince George RCMP detachment.

17. Will there be any consideration given to the cost of some counsel having to upgrade technology to accommodate Teams?

We expect that in 2020 most lawyers will have access to a desktop computer, laptop, tablet, or smart phone with a camera. If not, it’s probably a cost of doing business in the modern world. However, attendance at pre-trial conferences using Teams has been added to the Legal Aid tariff.

Questions about other aspects of the Court’s response to COVID-19

18. Will you expand and continue fax and email filing?

The Court is working with Court Services to make email and fax filing widely available. Unlike e-filing, email and fax filing require Court Services staff to process documents, and provisions must be made to accommodate this workload.
Our Notice to the Profession and Public Covid-19: Resumption of Further Court Operations NP19 sets out the documents that can be filed, with directions for filing by mail, fax or email depending on the type of case.

19. How will participants’ health be protected during in-person proceedings?

The measures being taken inside courtrooms are described in the Court’s Notice to the Profession and Public NP 22: Resuming In-Person Proceedings During COVID-19 (Health & Safety Protocols).
See too the Ministry of Attorney General’s Information Bulletin summarizing the steps government has taken to ensure everyone’s safety at courthouses and in courtrooms, including obtaining expert advice, initiating a verbal screening process, and cleaning and physical distancing protocols.

20. What is the impact of pre-trial conferences on criminal trials that were set and adjourned, or not yet adjourned?

We are conducting pre-trial conferences on all criminal trials scheduled for longer than half a day as set out in Notice to the Profession and Public Covid-19: Resumption of Further Court Operations NP19. These proceedings are attended virtually by counsel and the judge using Teams. Judges proactively engage with the parties to explore resolutions and counsel are expected to be prepared and able to make decisions. If resolution is not possible, then files will be case managed to restrict the use of court time to what is absolutely necessary to ensure a fair and timely trial, in this time of limited court resources.
Please contact the judicial case manager with any concerns about the scheduling of pre-trial conferences.

21. Could counsel receive the questionnaire the presiding judge will use during a pre-trial conference so we can be fully prepared, including having had the opportunity to consult clients on some of the questions?

As outlined in Practice Direction CRIM 12: Criminal Pre-Trial Conferences During COVID-19, at a criminal pre-trial conference the parties are required to have authority and be prepared to make decisions about:

resolution of the matter
disclosure
intended applications, including ones pursuant to the Charter
the number and identity of witnesses the Crown counsel intends to call
admissions the parties are willing to make
any legal issues anticipated may arise in the proceeding
an estimate of the time needed to complete the proceeding.

The parties are required to have thoroughly reviewed their files and discussed all these issues with each other before the conference. They are also encouraged to exchange any materials that may assist with resolution and trial management issues and provide copies to the pre-trial conference judge (such materials to be destroyed or returned after the conference unless otherwise agreed by the parties).
The discussion and review done by the parties before the conference are crucial to its effectiveness. They can narrow the issues between the parties and enable the judge to focus the conference discussion.
For family and small claims conferences, a recent eNews article posted on the Court’s website and emailed to eNews subscribers describes What to expect in a family or small claims conference held by telephone or video.

22. Lawyers’ are not getting adequate access to clients in provincial jails

The Court understands that concerns of this nature are being addressed directly between representatives of the defence bar and Corrections.

23. When and where should people with outstanding bench warrants appear?

People with outstanding bench warrants should present themselves to their local police or RCMP detachment.

24. Will the Court consider extended hours (night court? weekends?) to address the backlog?

It is something we’ve discussed with respect to some of the work we do. As set out in the Court’s June 22, 2020 Announcement, there will be some evening or weekend sittings of traffic court during July and August. Such sittings require consultation with the Court Services Branch as it is responsible for staffing courthouses.